San Diego Divorce Attorneys Blog

Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child's birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child's biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child's father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother's husband is presumptively the child's father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child's birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother's husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

The marital and non-marital paternity presumptions can have harsh consequences regarding a father's parental rights. Considering that the husband of a child's mother is presumed to be the child's father and that in non-marital relationships a man must live with and hold a child out to be his own in order to be presumed the father, a child conceived out of an affair can create a devastating situation for the biological father. In a California family law case, Dawn D. v. Jerry K. (1998) 17 Cal.4th 932, this scenario became a reality. In this case, Dawn D. intended to divorce her husband when she began living with another man named Jerry K. Shortly after moving in with Jerry K. Dawn D. became pregnant. Just three months into her pregnancy, Dawn D. returned to her husband and rekindled their marriage. As a result of this case, the biological father, Jerry K. was unable to assert his parental rights to his child.

The paternity presumptions can have surprising consequences in terms of child support obligations as well. A presumed father is obligated to pay child support where support is ordered. If a presumed father makes child support payments for the child's minority and later learns he is not the biological father, he has no recourse for the 18 years of child support payments made. Further, if a presumed father conclusively proves through DNA testing that he is not the biological father of a child BUT has missed the two-year statute of limitations, he will be on the hook for child support payments for the remainder of the child's minority.

California family law cases operate under the best interest of the child standard. Most family court rulings attempt to further that interest as the paramount concern. Many argue that paternity presumptions are outdated, unnecessary and detrimental to the best interest of the child. Because science has advanced and paternity can be determined so accurately and efficiently, these advocates contend that DNA testing should be conducted in each paternity case in order to ensure the child's biological father is shouldered with the responsibilities and is able to enjoy his parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Frequently conservatorship issues arise in California family law cases. On Tuesday March 20, 2012, Francesca Hilton, daughter of superstar Zsa Zsa Gabor, asked the court to grant a conservatorship over her ninety-five year old mother. Hilton claims that her mother's husband is mishandling her finances and possibly tampering with her medical treatment. In an effort to protect her mother's estate and health, Hilton requested that the court give her power over her mother's finances and medical care. If the court decides not to appoint Hilton as her mother's conservator, Hilton's attorney stated that she would be willing to allow a third party to do the job. In response to her accusations, Gabor's husband has alleged that Hilton is filing for conservatorship in an effort to get her mother's money. A hearing has been scheduled on May 2, 2012 to litigate the conservatorship.

While conservatorships are relatively common for older adults like Zsa Zsa Gabor, it is not often that a conservatorship is granted over a young and healthy adult. Recently Jamie Spears' conservatorship over his daughter's estate has been the subject of celebrity gossip. Pop icon Britney Spears was declared mentally incompetent in 2007 when her father became the conservator over her affairs. Britney's team has been accused of using the conservatorship as a form of protection for Spears. Many lawsuits have been filed against Britney and/or her affiliates and, considering she is mentally incompetent, she has not been forced to participate in the litigation including depositions. The conservatorship has also had consequences for Spears' personal life and career including the sale of her home, the postponement of her wedding, and a new contract to act as a judge on The X Factor.

A conservatorship is a court proceeding to appoint a person to manage the financial affairs and/or personal well-being of another person who is either mentally or physically unable to manage his or her own finances or personal care. A conservator can be either a person or an organization. Often a family member, close friend, or hired professional is appointed as conservator over the conservatee's estate or medical care.

A San Diego court may order different conservatorships depending on the facts of a particular case. The court can grant a conservatorship of the person. This conservatorship is appropriate when the conservatee has a severe physical disability and is unable to provide for his or her basic needs. In a case where the conservatee is not mentally competent to handle his or her finances including both debt and income, the court can grant a conservatorship of the estate. The court has the authority, as it did in the Spears case, to grant a conservatorship of the person and the estate. This combination approach grants the conservator control over both the health and finances of the conservatee.

A conservatorship is a complex proceeding that often requires many court hearings and attorneys. The conservator has great power over the life and estate of the conservatee; however, he or she is also charged with many responsibilities. The conservator is responsible for keeping detailed records of his or her decisions and actions along with filing updates with the court on a regular basis. This court supervision provides extra protection for the incompetent or disabled conservatee. Additional safeguards are in place regarding real property. In order to ensure that the conservator makes responsible decisions, especially regarding significant assets, the court may require the conservator to seek court approval before the sale of real property. This additional step may also be necessary in order to carry out a decision to take the conservatee off life-sustaining support. In the Spears conservatorship case, Jamie Spears was unable to sell Britney's LA mansion without prior court approval. This type of constraint is common in most conservatorship cases.

Recently, in Corpus Christi, Texas two grandmothers were awarded custody of their one-year-old granddaughter, Gabby. The child's mother, Victoria Valdez, was only 16-years-old when she tragically died from severe head injuries caused by a car accident on New Year's Day. The child's 18-year-old father, Gabriel Padron, was driving the car when the accident occurred and is suspected of driving under the influence of alcohol. Although he admits to drinking prior to the crash, he denies being drunk while driving his vehicle. No arrest has been made and charges have yet to be filed; however, he has been accused of intoxication manslaughter. Toxicology results are still pending.

During the custody case, Gabby's aunt testified that Padron was a dangerous domestic violence perpetrator and was unsafe for Gabby to be around. Valdez's sister further testified that the victim refused to leave Padron out of fear. During the trial, witnesses testified about both grandparents' role in Gabby's life prior to the accident and what accommodations Gabby would have in their custody. These witnesses described the baby's room, clothes, crib, and toys in each home. As part of a temporary custody agreement, the paternal and maternal grandmothers will share custody and Gabby will continue to reside with her paternal grandmother who cared for her immediately following the accident. Gabby's father was only given weekend visitation.

In San Diego, generally, following the death of a custodial parent, the surviving parent is entitled to sole legal custody. However, other relatives such as aunts, uncles, or grandparents may fight to obtain custody of the child. These relatives may file a guardianship or dependency action, or in the case of grandparents, a motion for grandparent visitation. If the relatives are successful in showing it is not in the child's best interest to remain with the surviving parent, they may be awarded custody. In the Texas case, family members testified about the father's violent behavior and suspected drunk driving and eventually were granted temporary custody of the minor child.

Under California Family Code section 3104, a grandparent of a minor child may petition the court for visitation rights. The court may grant reasonable visitation if the court does the following: (1) finds that a grandparent-grandchild relationship existed prior to the action and that it is in the best interest of the child to visit with the grandparent, and (2) carefully balances the parent's right to exercise his or her authority and deny visitation against the interest of the child in having visitation with the grandparent. It is important to note that this type of petition may not be filed while the grandchild's parents are married unless one or more of the following exceptions apply:

(1) The parents are living separate and apart on a permanent or indefinite basis;
(2) One parent has been missing for more than one month and the other parent has no knowledge of his or her whereabouts;
(3) One of the parents joins the grandparent in his or her petition;
(4) The child is not currently living with either parent; or
(5) A stepparent has adopted the child.

Grandparents may have an uphill battle convincing the court it is in the child's best interest for the grandparent to have visitation. In California, there is a rebuttable presumption that grandparent visitation is not in the child's best interest if the parents agree that visitation rights should not be granted.

Please contact us if you questions regarding child custody, visitation or support. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego representing clients who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Although most people can gamble on a recreational basis, millions suffer negative consequences in their lives from problem gambling. According to the National Council on Problem Gambling about two to three percent of adults experience gambling-related problems each year. These problem gamblers have an uncontrollable urge to gamble and cannot stop gambling despite the negative consequences that result from their gambling. These negative consequences are frequently financial problems that impact the gamblers personal life, family relations, educational endeavors and/or employment.

Image by Jeff Kubina

Sometimes the gambling and problems stemming from the gambling becomes so bad that the non-gambling spouse files for divorce. When this occurs, the non-gambling spouse usually reports that the gambling spouse gambled away a significant amount of community property assets and that there are outstanding gambling debts. However, the non-gambling spouse may not be liable for the outstanding gambling debts.

Generally, all assets and debts incurred during marriage are considered community property. Family Code §2625 makes an exception to the general rule stating that, "All separate debts, including those debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt."

This Family Code section provides the court with the ability to assign gambling debts to the gambling spouse. This is one of the few insteances where a court has the discretion to make an equitable division based on fault rather than an equal division of debt.

In the case In re Marriage of Cairo, Wife was able to prove that debt incurred during marriage on credit cards in Husband's name was for Husband's gambling. The Trial Court characterized the credit cards in Wife's name as a community property obligation and the credit cards in Husband's as his separate property obligation. The Court of Appeal affirmed relying on the predecessor to Family Code §2625, which also stated that debts not incurred for the benefit of the community can be assigned without offset to the spouse who incurred the debt.

On the other hand, if the gambling spouse wins big when gambling with community property assets, then those gambling proceeds could be considered community property assets and equally divided between the parties.

In the case In re Marriage of Shelton, after separation Husband gambled $10,000 of community property monies at a casino in Nevada, won $22,000 and bought Ferrari for $32,000. Husband claimed that $22,000 of the value of the car was his separate property. The Trial Court disagreed and characterized as the car as community property. The Court of Appeal affirmed holding that the character of the gambling proceeds follow the character of their source. In this case the source of the monies used to gamble were community property, therefore, the gambling winnings were also community property. The Court of Appeal rejected Husband's argument that the winnings were his separate property post-separation earnings because gambling is primarily a game of chance where the skill component is small.

In the case In re Marriage of Wall, Wife used her post-separation earnings (or support payments) to buy an Irish Sweepstakes ticket and won $120,000. Although Husband claimed the winnings were community property, the Trial Court disagreed and awarded the winnings to Wife as her separate property. The Court of Appeal affirmed. Unlike the Shelton case, in this case the source of the monies used to buy the Sweepstakes ticket was Wife's separate property. Therefore, the Sweepstakes winnings were also her separate property.

Continue reading "The Gambling Spouse " »

It is not surprising that many California couples decide to adopt pets. But what happens to those pets when the couple decides to seek a divorce? Across the country custody battles over family pets are increasing. Although pets are not technically the couple's children, they can become a core part of the family that neither spouse is willing to part with. If the couple does have children, the judge is likely to order the pet to stay with the child.

One reason these pet custody cases are on the rise is the dissolution of same-sex marriages or domestic partnerships. These legal unions are relatively new and the couples tend to adopt pets in lieu of or in addition to children. Unlike children, pets are a form of property in every state. In the past, pets have been divided up along with the rest of the marital property without distinction. The family courts are changing and beginning to recognize that pets are more like children than furniture. The shift may be resulting from a widespread recognition of pets as part of the family rather than mere possessions. Litigants are now passionate and unashamed to fight for custody of a pet.

When a couple divorces, the best interest of the child guides a judge's decisions on child custody and visitation. For pets, this is not the case. Since pets are a form of property, the laws regarding pets are generally aimed at benefitting the owner. The court will consider the same factors when deciding who gets custody of the pet as they would in deciding who gets custody of a television set. The court takes into consideration factors such as: whether either spouse owned the property prior to marriage or post separation, how much the property is worth, and any agreement the couple reached about who gets the property.

As California family law stands today, there is no pet visitation provision. The courts simply have the authority to award custody of the pet to one party or the other. If splitting couples wish to split time with their pets they must work out a visitation schedule together. These schedules can be negotiated with the help of lawyers and mediators. Some can be rather elaborate and include long-distance traveling for the pet, a holiday schedule, daycare expense sharing, grooming responsibilities, training, treats, food, medical care and other related decisions. Like parents who share legal custody of a child, some couples agree to share a form of legal custody of a pet. This means that both parties will have the right to make decisions regarding the health, safety, and welfare of the pet including end of life decisions.

Another area of family law that has begun to recognize pets as family members is domestic violence. In the past, domestic violence restraining orders could not be issued to protect pets. More recently, this has become a common practice. Under California Family Code section 6320(b), "on a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned...the court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking...the animal." Local community organizations have also reached out to victims of domestic violence and their pets. For example, Rancho Coastal Humane Society offers shelter for the pets of these victims while they escape their abusers and seek shelter themselves. Because abusers tend to threaten harm to the animal as a tool to control their victim, these programs facilitate a victim's decision to escape and take part of the abuser's power away.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

After a long and embarrassingly public divorce, Beverly Hills Housewife Camille and Broadway star Kelsey Grammer reportedly end their custody battle. The couple shares two children: Jude, 7 years old, and Mason, 10 years old. It seems that Camille will have physical custody of the children since their primary residence will be with her. Kelsey will reportedly have "meaningful contact" with the children. After a 13-year marriage it appears both stars have moved on. Kelsey remarried within two weeks of finalizing his divorce. He and his new wife are expecting twins. According to Camille's statements on her show the "Real Housewives of Beverly Hills" , she is also happily in a relationship with lawyer Dimitri Charalambopoulos.

Camille filed for divorce on July 1, 2010 after learning of Kelsey's affair with a stewardess, Kayte Walsh. Kelsey was able to marry his new wife Kayte Walsh before settling all aspects of his divorce with Camille through the bifurcation process. In order to accomplish this, Kelsey asked the judge to grant a divorce decree while suspending the division of the large and complex marital estate. The estate is estimated to be worth $120 million dollars and because the couple did not have a prenuptial agreement, Camille demanded $50 million.

In San Diego, the court will agree to bifurcate a divorce case. States like New York, Texas, Arizona, and Michigan only bifurcate cases in exceptional circumstances. California is part of a minority of states that bifurcate divorce cases for almost any reason. To bifurcate a case is to split it into two parts. Generally, as in the Grammer divorce, the first issue to be litigated is marital status. By resolving marital status, each spouse becomes divorced and therefore single and able to legally remarry. The remaining issues may include disputes over property distribution, child custody and visitation, child support, and alimony.

A party may wish to bifurcate a case in order to remarry like Kelsey or the spouse may be motivated by tax consequences or implications. A person can file his or her taxes "single" as long as his or her marital status was terminated before the end of the year. During a divorce proceeding, the court often makes temporary orders for spousal support. Any spousal support payments are 100% deductible for the payor and must be claimed as income by the payee. This tax consequence is not implicated if the couple decides to file a joint tax return. In other instances, when the divorce is a particularly acrimonious one, bifurcation can prevent one spouse from exerting control over the other's personal life by delaying the ultimate result, divorce.

A bifurcation may be obtained by agreement of the parties. In this case, the parties stipulate that the cause may be tried as an uncontested matter. Because a divorce can take many months or even years to proceed through the California family court system, many parties seek to bifurcate their case in order to obtain some degree of finality. They will be legally divorced and able to move on with their lives while in the process of litigating other matters. Not surprisingly, Camille opposed Kelsey's motion to bifurcate the divorce proceedings. Although many speculated that Camille was simply acting as a woman scorned, she was also concerned that legally divorcing Kelsey would leave her with uncertain rights to the marital estate that had yet to be divided.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!

Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, "I do not use drugs") and text something contrary to your spouse or a third party (such as, "I can't believe how stoned I was at the party"), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio's famous line from Shakespeare's Romeo and Julie), said "A pox on both your houses." When the other party blurted out, "She started it!" the judge replied, "Sir, two wrongs do not make a right - and your emails back to here were totally inappropriate, no matter who started it."

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.

Continue reading "Texting Can have a BIG Impact on your Divorce Case" »

How do I collect unpaid or back child support in San Diego?

Times are tough already between the economy and normal monthly expenses stacking up. The last thing a custodial parent needs is to worry about obtaining and collecting child support. Attorneys in the San Diego area can help you obtain and collect unpaid or back child support that is owed to you.

Why do I need a Child Support Order?

If you are the primary custodial parent, you have a right to child support to help with your monthly expenses. The non-custodial parent is just as responsible for providing for the child(ren) as you are. Having an oral agreement for child support with the non-custodial parent is not good enough. You need to obtain an order from the court for the child support agreement to be enforceable. Without a court order the non-custodial parent has no legal obligation to pay child support to you even if you have agreed to terms for child support payments. If the co-parent stops paying the amount of child support you informally agreed to, then you will have little recourse if he or she stops making payments and you will not be able to collect arrears for the months they did not pay or only partially paid.

How do I file for child support?

Obtaining a court order is easier than it sounds and the state's enforcement tools (discussed below) often provide incentive for the non-custodial parent to pay child support.

If you were not married to the child's parent at the time the child was conceived, you will have to first file a Petition to Establish a Parental Relationship ("Petition") to establish paternity. You will need to provide your attorney, and the court, whatever information you have about the other parent's whereabouts and your relationship with that person. The Petition also allows the court to make child support orders once paternity is established.

If you were married when the child was born, paternity is presumed unless the other parent challenges paternity. However, you will have to file an Order to Show Cause to obtain child support. The court will determine a guideline amount based on both parent's income, timeshare with the children, and various other factors.

Continue reading "How do I collect unpaid or back child support in San Diego?" »

On Tuesday, February 7, 2012, the U.S. Ninth Circuit Court of Appeals ruled Proposition 8 unconstitutional. The voter-passed initiative banned gay marriage in the State of California. As a result, California's state constitution was amended to read; "only marriage between a man and a woman is valid or recognized in California." Activists argued that, by allowing gay marriage, California schools would be infiltrated with inappropriate material that undermined heterosexual marriage. Immediately, lawsuits were filed challenging the ban. There are many supporters on both sides of this issue and the Ninth Circuit's ruling is likely to be appealed to the United States Supreme Court. Anticipating this move, the Ninth Circuit stayed it's ruling. However, counties across the state are beginning to prepare for the anticipated influx of same-sex marriages that will most definitely ensue once the stay is lifted.

Some of Proposition 8 supporters and opposition can agree that once the voters speak, their decisions should be honored. In the Federal District Court of the Northern District of California, Judge Vaughn R. Walker found that Proposition 8 violated the equal-protection rights of the same-sex couple who filed the lawsuit. Judge Walker and the Ninth Circuit agree that banning same-sex marriage is a violation of the 14th Amendment of the United States Constitution because it discriminates against a group of people. The voters of California have rejected same-sex marriage twice and twice they have been challenged in the courts.

Currently, a total of six states grant same-sex marriage licenses including: Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. The government of Washington D.C. also grants same-sex marriage licenses. In addition, Maryland recognizes same-sex marriages performed in other states, however it does not grant same-sex marriage licenses. On Tuesday February 8, 2012 the State of Washington Legislature passed a bill permitting gay marriage. That bill was signed into law on February 13, 12.

California voters were not alone when they rejected gay marriage. State after state has followed suit. When put to a popular vote, gay marriage is frequently vetoed. In fact, in 31 of the 31 states where gay marriage was put to a vote, the voters refused to pass the referendum. Interestingly, a Field Poll taken in 2008 concluded the majority of Californians approved of legal same-sex marriage. In 2010, a CNN poll reached similar results. The poll found that, on a national scale, the majority of Americans approved of legal same-sex marriage. In 2011, the Pew Research Center reached the same conclusion finding 46% of Americans in favor of same-sex marriage and 44% opposed. Considering all of these statistics, why do voters reject same-sex marriage in the polls? Whatever the reason, a conclusion to this tumultuous battle is not on the horizon anytime soon.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

News just broke that reality star, Kim Kardashian, has her legal team working very hard to ensure her divorce from basketball player, Kris Humphries, is handled in a private mediation; no cameras allowed! It's Kim's hope that by taking their divorce out of the spotlight, the proceedings won't take longer than the actual marriage itself. A source close to the Kardashian family adds:

"A public trial is the last thing that Kim wants, and she has instructed her lawyer to formally petition the court so that the divorce can be heard by a mediator, which is routinely done in California, since it's a no-fault state. Kim doesn't want a long drawn out trial. She wants the mediation to be private, confidential, and legally binding. She and Kris have no assets together and kept separate bank accounts, so this is a fairly routine divorce proceeding. Kim just wants this over and done with."

Mediation is an alternative to going to court. It is a confidential process by which the parties get to try and settle the case with a third party neutral (mediator). It allows the parties a chance to communicate and have the opportunity to be heard. The greatest benefit to mediation is that you and your spouse get to come up with the terms of the agreement rather than the Judge deciding for you. There is a risk with putting fate in the courts, because you and your spouse know better than anyone, what is best for you and your family. It provides a win-win for the parties because you each have a role in making the agreement. On the other hand, when you go to court, one or often both parties are dissatisfied with the Judge's decision. Mediation will save time and money by not going through the court process, which can take months or even years for all the aspects of the divorce to become final and can be extremely expensive.

In California, it is required if you have children to attend mediation when getting a divorce to determine custody. Family Court Services interviews you and your spouse regarding the health, safety, and well being of the children involved. The mediator will determine what is in the best interest of the child(s) and propose a custody arrangement to the Judge. It can be as specific as you want including who the child(s) will be with for birthdays and holidays. Before going in front of a judge for your divorce, you may want to consider trying to work something out with your spouse instead by doing what's known as a divorce mediation as well.

San Diego County is known throughout the state of California for being less litigious, and more settlement-oriented, than other counties. There are attorneys who have specialized training in mediation and are settling the vast majority of their cases. Issues included in divorce mediation include but are not limited to: Distribution of property, child custody, child support, spousal support, retirement benefits and taxes. Some issues may be more difficult than others to discuss, but it is the mediator's job to keep the lines of communication open, brainstorm ideas with you and provide a safe environment for each of you to speak in an amicable way. Lack of communication or arguing may have been one of the reasons for your divorce; mediation has the ability to help you communicate with each other again, if only for the sake of your children.

Continue reading "Should I consider Mediation during my San Diego divorce?" »

Many San Diego residents own businesses that continue to operate and generate income throughout the owner's divorce. It is well established in California, absent an agreement otherwise, that a spouse is entitled to an interest in community property assets. Community property generally consists of all assets acquired during the marriage. We have previously blogged about the date of separation and its importance in the division of property in a dissolution proceeding. Business owners are confronted with a unique problem - is their business community property? What about the increase in value between the date of separation and trial?

As a general rule, for the purpose of division of the community estate upon dissolution of marriage, the court shall value the assets and liabilities as near as practicable to the date of trial. Any income or assets acquired by a party between separation and divorce are separate property. However, the value of a particular asset is not determined until the date of trial. For example, consider this hypothetical. Husband and Wife decide to separate with intent to end the marriage accompanied by objective acts to demonstrate that intent. At the time of separation, the couple owns a house that is worth $150,000. Husband decides to move into a nearby apartment and Wife takes over all mortgage payments. Because they have a daughter still in high school, the couple decides not to file for divorce immediately. Two years later, because of market fluctuations, the house is worth $200,000. Although Husband moved out of the house and Wife made each mortgage payment following separation, they are both entitled to share in the increase in profit. The court may make orders to account for the mortgage payments made by Wife, but Husband will generally share in the increased value. Real property values can fluctuate dramatically between the date of separation and trial because parties may separate months or years before their case is finalized. If the asset is a typical community property asset such as a family home the value is determined as close as possible to the date of trial.

There is an exception to this general rule. Under California Family Code section 2552(b), "Upon 30 days' notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate of the parties in an equitable manner." Any party may petition the court to value an asset at the date of separation rather than closer to trial by showing that this alternate valuation is fair. A date of separation valuation of property is appropriate when the hard work and actions of one spouse alone and after separation, greatly increases the "community" estate, which then must be divided with the other spouse. However, if the asset increases in value from non-personal factors such as market fluctuations or inflation, it is fair that both spouses share in that increased value.

When a spouse operates a community property business after separation, there is a sense of unfairness when applying the general rule that the business must be valued as of the date of trial. The law recognizes that an increase in value of these businesses is primarily a reflection of the contribution of the owner's services. This exception applies especially to professional businesses such as law practices, medical practices, or contracting businesses. If the skill and reputation of the owner accounts for an increase in the assets value, the court may value the asset at the time of separation and divide the property accordingly.

Please contact us if you are considering a divorce from your spouse or have questions regarding property valuation. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Often, the line between being married and being separated is blurred. Couples considering divorce have the option to experiment with a trial separation in order to give the spouses time to consider if divorce is their best option. Other couples decide to file for divorce and later reconcile. Sometimes those couples continue with the marriage and other times they resume divorce proceedings. The decision to end a marriage can be difficult and messy, however the parties' actions between the time of separation and a dissolution judgment can impact their case significantly.

One reason why date of separation is so crucial is that it is used as the dividing line between the beginning and the end of the marriage. Surprisingly, for the purposes of property division, the date of divorce is not used as the date of the end of the marriage. California is a community property state. This means, for the most part, any contributions by either spouse after the date of marriage belongs jointly to both spouses. Any income of either spouse belongs jointly to both spouses. Further, any property or assets purchased with that income belongs jointly to both spouses. Few assets such as inheritances or property acquired before marriage are separate property.

To complete the divorce process, depending on the circumstances, can take anywhere between a few months to over a year. Presumably, both spouses will continue working during this time and purchasing assets. Do these assets and income belong to the respective spouses as separate property or to the spouses jointly as community property? How will these assets be divided upon divorce? Under California Family Code section 771, the earnings and accumulations of a spouse, while living separate and apart from the other spouse, are separate property of the spouse. Therefore, anything acquired by either party between the date of separation and the divorce is separate property. The next problem is - when did the couple "separate"?

Date of separation is often a hotly contested issue because it can determine how a number of significant items are distributed. For instance, it can determine whether a marriage is long-term or short-term, if one spouse is entitled to the lottery winnings of the other, and whether one spouse is entitled to any number of valuable assets acquired by the other spouse during the dissolution process. It would seem that deciding when the parties separated is an easy task that both parties could easily agree on. However, in a potential divorce situation, the behaviors of the parties can be confusing and separating spouses often send mixed signals to each other. When determining the parties' date of separation, the court looks to their private conduct rather than how they behave publically. This comes from an understanding that many couples keep up public appearances of a marriage for many different reasons such as for the benefit of any children they have. The ultimate question to be decided in determining the date of separation is whether either or both parties has the subjective intent to end the marriage and furthers that intent through objective conduct. This is a factual question and the court looks at various steps taken by the spouses to demonstrate the final breakdown of the marriage.

In order to ensure the court views your actions as conduct furthering the intent to end the marriage there are a few steps you can take. First, live separate and apart from your spouse. To be clear, this means moving out of a common residence. Second, cease engaging in any romantic conduct. Do not send cards, flowers, or any gifts to your spouse because this could be construed as an attempt at reconciliation. Third, do not perform marital duties such as doing laundry, cooking, or cleaning for the benefit of the other spouse. Fourth, communicate your intent to end the marriage to your spouse clearly. Fifth, immediately cease the commingling of finances with your spouse, especially the purchase of any real estate. Finally, simultaneously attending social gatherings with your spouse is a mixed bag. One court held that as long as the spouses were not attending these functions "together" there was no problem deciding date of separation at an earlier time. However, many still argue that this attendance is controversial.

Please contact us if you are considering a divorce from your spouse or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

A New York Court recently granted the state's first contested no-fault divorce. While New York's no-fault divorce law is only one year old, California enacted no-fault divorce over 40 years ago, in 1970.

photo by Keith Lovett

Wife filed for divorce under New York's year old no-fault divorce law on the grounds that her marriage was "irretrievably broken." Wife testified that she has not had marital relations with her Husband for over five years, they slept in separate bedrooms and never ate meals together. Although she is in poor health, she testified that her Husband had not taken her to her doctor's appointments in the last five years or even asked about her health for the past ten years. She further testified that she had "no hope for the marriage ... and that her only wish is for a divorce so that she can have one-half of her marital assets and leave them to her four children before her demise."
Husband contested the divorce because he wanted to remain married saying he "worked hard to acquire everything the parties had" and didn't want to lose it in a divorce.

The Court applied the new no-fault law and granted Wife's request for a divorce stating, "[I]t is this Court's determination that the parties' relationship has so deteriorated irretrievably ...the plaintiff is entitled to a judgment of absolute divorce,"

In California, a no-fault divorce allows for a divorce without requiring either party to present evidence of wrong doing or breach of the marital contract. The idea behind a no-fault divorce was that removing the fault requirement would also remove some of the bad blood from the divorce process, and allow couples who wanted to break up to do so without having to make false allegations to justify the divorce to the court. No longer would couples, or even just one party, who wanted a divorce have to choose between lying under oath in open court or remain married.

Prior to no-fault divorce in California, a divorce could be obtained only through a showing of fault. This requirement meant that one spouse had to plead that the other had committed adultery, abandoned them, was cruel, or some other culpable acts. To get a divorce, parties often lied, colluded and committed fraud upon the court in order to get around the statutory limitations of the fault based requirement. Prior to the enactment of no-fault divorce, many prominent attorneys and judges in California believed that the "legal fictions" used by parties to satisfy the requirements for divorce made oaths meaningless and threatened the integrity of our legal system by encouraging perjury. Without committing perjury, many couple could not obtain a divorce, even if both parties wanted a divorce.

California's no-fault divorce law provided a straightforward ground for ending a marriage - irreconcilable differences. Not only did California's no-fault divorce laws eliminate the fault requirements to obtain a divorce for spouses seeking a divorce by mutual consent, but also in cases where only one party to a marriage wanted a divorce.

No-fault divorce ushered in other changes to divorce laws. Under no-fault divorce, gender-based responsibilities such as the Husband always being responsible for child support while the Wife was always responsible for custody gave way to gender-neutral responsibilities such as both parties being eligible for custody and responsible for child support.

As an interesting side-note, California's no-fault divorce policy even invalided a Marital Agreement that was intended, after Husband had an affair, to "preserve, protect and assure the longevity and integrity of an amicable and beneficial marital relationship between them." In the Diosdado case, rather than divorcing, the parties agreed to be subjected to a legal obligation of emotional and sexual fidelity to the other. If either party volitionally engaged in certain acts with any person outside of the marital relationship, that party would be in breach of the Marital Agreement, which provided for liquidated damages should the obligation of sexual fidelity be breached. Damages included that the party in breach would be: (1) required to vacate the family residence, (2) solely responsible for all attorney fees and court costs, and (3) pay $50,000 over and above any settlement or support obligations. Of course, Husband had another affair and Wife sued for breach of contract, seeking to enforce the liquidated damages clause of Marital Agreement. However, the Trial Court granted Husband's judgment on pleadings, because the Marital Agreement was contrary to the public policy underlying California's no-fault divorce laws. Wife appealed, but the Court of Appeal affirmed stating, "Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage. [See Family Code §2310, Family Code §2335.] For that reason, the agreement is unenforceable."

Continue reading "California's No Fault Divorce Travels to New York" »

It is that time of year when you need to file your income taxes and we want you to be informed. Your filing status for taxes depends partly on your marital status on the last day of the year. If you were still legally married (meaning there is no final divorce decree) as of December 31, 2011 you are considered to have been married for the full year and must file as either married filing jointly or married filing separately. For federal tax purposes, "marriage" currently only means a legal union between a man and a woman as husband and wife. Your filing status is important and is used for many things on your tax return, such as determining your standard deduction, whether you need to file a return, the amount of tax you owe, and whether you qualify for various deductions and credits. When it comes to your filing status, you do have options.

Married Filing Jointly

If you are still legally married, you and your spouse can file a joint tax return. Married couples do not have to be living together to file jointly. If you file a joint return you both must include all your income, exemptions, deductions, and credits on that return. Even if you or your spouse had no income or deductions, you can still file a joint return. You must balance taxes due against your risk of being jointly and separately liable for taxes, interest, and penalties on a joint return. If you question whether your spouse is reporting all income, or have little or no knowledge of your spouse's income and finances, discuss this issue with legal counsel before signing a joint return. The Internal Revenue Service (IRS) can hold you liable for all taxes due on a jointly filed return, as well as penalties and interest, even if your spouse alone earned the underlying income.

Married Filing Separately

Legally married couples can also file "married filing separate" whether they live together or not. If you and your spouse file separate returns, you should each report only your own income, exemptions, deductions, and credits on your individual return. You can file a separate return even if only one of you had income. However, the married filing separately status rarely works to lower the family tax bill. For example, one major disadvantage is that you can't have one spouse itemize and claim all the deductions while the other claims the standard deduction. Both husband and wife must either itemize or use the standard deduction. You can't mix and match. So if one spouse itemizes and the other has nothing to itemize, that spouse would not then be able to claim the standard deduction, which might have reduced the amount of taxes owed.

Another disadvantage with "married filing separate" filers is that they can no longer take any relevant exclusions, credits, or deductions for adoption or education expenses. Likewise, various exclusion and exemption amounts will be cut for child and dependent care expenses, employer dependent care assistance, and alternative minimum tax. Here are some examples if you file separate returns with your spouse:

• You cannot take the Earned Income Credit.
• You cannot take the Child and Dependent Care Credit in most cases.
• You cannot exclude any interest income from U.S. savings bonds that you used for education expenses.
• You cannot take the Credit for the Elderly or Disabled unless you lived apart from your spouse all year.
• You may owe more taxes on Social Security income or railroad retirement benefits than if you filed jointly.
• You cannot deduct interest paid on student loans.
• You cannot take any education credits.
• You cannot take an exclusion for adoption expenses or the Adoption Credit in most cases.

Benefits of filing under this status include only having liability for the tax, interest, and penalties on your own return. The IRS would not pursue you for your spouse's tax obligation for that same year. If the return is filed electronically, any refund due can be divided up and directly deposited by the IRS in up to three different separate accounts. Note, however, that some financial institutions will not allow a refund for a joint return to be deposited into an individual account, so if this option is being considered, the taxpayer should check with his or her bank.

Continue reading "How will divorce affect my income taxes in California?" »

Superstar basketball player Kobe Bryant is splitting with his wife Vanessa. On December 1, 2011, Vanessa filed a divorce petition in the Superior Court of California in the County of Orange. Like many other rich and famous celebrities, Kobe and Vanessa Bryant did NOT sign a premarital agreement. The Bryants have released a statement revealing that the couple has settled all relevant issues privately including: custody, visitation, property, and support. A judgment will be entered in 2012.

The couple has two young children Natalia, 8, and Giana, 5. Both Kobe and Vanessa are asking for joint custody of their daughters. According to the filing, the couple will share both legal and physical custody. It seems like Kobe and Vanessa will not litigate any issues in their divorce.

Ironically, the couple celebrated their 10-year wedding anniversary on April 18, 2011. In 2004, Kobe was accused of sexually assaulting a woman in Colorado. Throughout the entire investigation and trial, Vanessa stood by his side and supported the position that the alleged sexual assault was consensual. Vanessa admitted that Kobe made a mistake by committing adultery but refused to acknowledge any more of the woman's claims. Rumors have surfaced that Vanessa saw divorce lawyers and almost served Kobe with divorce papers in 2004. A source close to the couple commented: "Vanessa almost threw in the towel four years ago. Kobe always had a slew of girlfriends, and the cheating was almost blatant."

Despite Kobe's public (alleged) infidelity that continued into the years following 2004, Vanessa stayed in her marriage before suddenly filing for divorce in 2011. Vanessa was likely counseled in 2004 regarding the likely outcomes of a potential divorce case and her options. Under California law, a marriage of 10 years or more is a presumptively a long-term marriage. Having a long-term marriage entitled Vanessa to many advantages in a divorce proceeding. California Family Code section 4320 lists the factors a court may consider in awarding spousal support. Under section 4320(l) the goal of the court shall be that the supported party shall be self-supporting within a reasonable period of time EXCEPT in the case of a long-term marriage. If the marriage is not long-term, a "reasonable period of time" is generally one-half the length of the marriage. Therefore, if Vanessa had filed for divorce in 2004 she would likely be awarded spousal support for around 3 years. Now that the 10-year mark has passed, Vanessa may be entitled to permanent spousal support.

Continue reading "Vanessa Bryant's Strategic Divorce Move" »